So the guy in pink is the younger Pinckney, of South Carolina. (I’m so clever, I know.) And pipe guy is Oliver Ellsworth. You’ve already met most of the other speakers — Gouverneur Morris in the very dark suit and a Caesar haircut, Gov. Rutledge in the various shades of green, James Madison in blue and gray, Alexander Hamilton in a cameo role, and James Wilson in blue and yellow. (If you ever read their dialogue aloud, Wilson was from a little village outside St. Andrews, and I always imagine him with a soft Fife Scots accent.)

It can’t be helped, but some very admirable people said some exceedingly distasteful things here. And shameless advocates of slavery said some possibly sensible things, for that matter. People, right? Impossible to direct. Always breaking character.

I know I mentioned at the beginning of this topic that most law students are never even assigned to read the Constitution itself. But THIS stuff? If you happen to be a law student, and your professor has gone into anything we’ve touched on in this chapter, count yourself very lucky indeed. We’re not going to spend a whole lot more time on what the Framers were thinking, before diving into the juicy modern-day stuff. But I firmly believe it’s impossible to have a meaningful discussion about what the Constitution says if you don’t know what it was TRYING to say.

Also, I purposely excluded discussion of the fugitive slave clause in Article IV Section 2 (third clause, the one that says free states can’t emancipate runaway slaves who reach their territory, etc.) You’d think it fits in with the whole 1808 thing, as yet another guarantee to preserve those precious extra seats in Congress… except it doesn’t. To give it the correct context, I’d have had to get into the whole privileges and immunities thing, delve into the Northwest Ordinance story, and we’d have an even longer digression of this already long digression! But yes, that’s another bloody stupid protection of slavery they included.

And all of those protections were very carefully drafted so as not to use the actual word “slavery.” They truly thought they were being clever, hiding it like that. The three-fifths compromise they buried three deep, in references to other references! For the sake of historical accuracy, here is a list of every American at the time who failed to grasp precisely what this language meant:

Post navigation

Be sure to share your comments in the Class Participation section below -- that's the best part!You can turn pages with the arrows on your keyboard ← →.

Join the conversation!There are now 19 comments... what are your thoughts?

Gregory T. Bogosian says

Did anyone think to put in a clause saying “The power to regulate and/or abolish the slave trade, and or the ownership of slaves, shall be reserved to the several states”? It wouldn’t have stopped the passage of a new amendment to outlaw slavery. But, it would have made it very difficult for anyone who endorsed the constitution to argue for such an amendment without it looking like a betrayal.

Farrand’s “Records of the Federal Convention of 1787” is, of course, the go-to resource. As close to a primary source as one can get. It contains the copious notes Madison and others took during the proceedings, as well as many subsequent letters and other documents they wrote about it later. However, it is a mistake to treat it as gospel. None of it is a verbatim account, but rather recast in the words of the note-taker. That becomes obvious fairly early on, especially when comparing different notes about the same day. (And it lets me feel comfortable in paraphrasing speeches as needed.) Also, as we’ve discussed on earlier pages, once the delegates realized that posterity was at stake, they started curating idealized but nonetheless fictional versions of the record — like Hamilton giving Madison a version of his proposal that wasn’t actually what he’d proposed, but what he wished had been, or like the whole Pinckney Plan bamboozle. And the records only contain what was stated for the record. Nobody was transcribing the informal debates, the many deep discussions outside under the shady tree where Ben Franklin held court, the countless cocktail party conversations, or even any of the comments cheers and jeers during the on-the-record speechifying. We have to piece all that together based on what we know of the men themselves, what they admitted to in preserved letters, what they argued at the various ratifying conventions, etc. (Oddly, you’d think that all of this would be thoroughly picked over by historians long ago. Yet, perhaps precisely because of this sense that it must already have been fully analyzed, few seem to have bothered. There’s plenty of room for original scholarship here.)

Your closing criticisms are too harsh, and often just wrong. In fact the convention should have licked the South’s boot even more to save the Constitution.
The basic point was that the South was half of the population in 1790. A Constitution without the South just was not possible. Any academic idea about getting rid of slavery was doomed.
The same sort of point applies to 1860 and the Civil War. The South had “shrunk” to only 1/3 of US population. The points you see as contributing to the Civil instead delayed it, and every year of delay increased the chance the North would win. Another 10-20 years and the South could not have revolted with the least dream of success.
And it was the bitterness of the Civil War that caused/increased the later evils you mention. If we could have managed another great compromise in 1860 [licking the South’s boots some more], these would have been have been much less trouble for us.

A constitution without the South wouldn’t have been possible? Even today, there are many counties with populations less than the two million the North would have had alone.

Each state has equal representation in the Senate, and the South was very aware of that. The Missouri Compromise was all about that. The Dred Scott decision opened up the West for slaves. If at all possible, the South would have extended slavery into the West and kept the power of the slave states as a whole. The South had no intent of letting itself slip into powerlessness. Any compromise that would kept the South happy would have been engineered to prevent the loss of power you find inevitable.

“It is time, high time, and long has been time,” said the Rev. Samuel May, Jr., “when we should cut for ever the bloody bond which unites us to the slaveholders, slave-breeders and slave-traders of this nation, and henceforth have no part nor lot with them in the iniquity and infamy which they are determined to perpetuate, and in which so long they have made us, or we have consented to be made, instruments and participants.”

Dr. Daniel Mann . . . suggested that Americans were “on the eve of a new revolution, which shall repeat the triumphs, but show the mistakes of the old; of a new confederation, which shall not only declare the self-evident truths of humanity, but abide by them and establish them, unterrified by menace, unbribed by flattery, undebased by compromises.”

Garrison dismissed the “ridiculous glorification of a Union which has only served to extend and strengthen slavery, and to weaken and degrade liberty.” The American Revolution had been a good start, he said, but there was more work to be done. “We have tried the experiment for almost three score years, and it has proved a failure,” Garrison said. “The living and the dead must not be bound together.”

There’s no reason why a new northern country couldn’t write itself a constitution, or adapt the original.

Could the northern states have survived long without the south? Probably. (Who knows, Canada might have taken them up on the old invitation and joined them.) But it would very likely have been seen as a death knell for the idea of a working republic. By 1856, the French had tried it twice and failed. If the U.S. allowed any secession to succeed, it would have been fatal proof that democracy just can’t last. That self-rule is destined to fail, because people will never agree, and can just walk away when they don’t get their way. Lincoln understood this very well, and had to work his ass off to keep the north committed to the fight. More than a few would have gladly said “good riddance” instead.

he adoption of the Constitution was rather a near thing. To start with it was in excess of orders and the Congress could have just circular filed it, which would have been quite likely if the delegates from several states rejected it. and without slave state backing, getting the needed number of states to approve would have been about impossible. So an insistence on more restrictions on slavery would have sunk the Constitution, and any 2nd try would have had to be even more pro-South.
The South didn’t want to slip into powerlessness, but that was what was happening in 1860, The House was long gone of course, and they had run out of slave states and so the Senate was gone too. Now the anti-slavery Republicans had the White House, and the Supreme Court was sure to follow. They might have held onto a little power for a decade or two, but it was now or never. I am skeptical any compromise could have been passed, but that could have prevented the Civil War, or reduced it to one battle.

The adoption of the Constitution was rather a near thing. To start with it was in excess of orders and the Congress could have just circular filed it, which would have been quite likely if the delegates from several states rejected it. and without slave state backing, getting the needed number of states to approve would have been about impossible. So an insistence on more restrictions on slavery would have sunk the Constitution, and any 2nd try would have had to be even more pro-South.
The South didn’t want to slip into powerlessness, but that was what was happening in 1860, The House was long gone of course, and they had run out of slave states and so the Senate was gone too. Now the anti-slavery Republicans had the White House, and the Supreme Court was sure to follow. They might have held onto a little power for a decade or two, but it was now or never. I am skeptical any compromise could have been passed, but that could have prevented the Civil War, or reduced it to one battle.

In grade school, when we studied this issue, I looked up the slave and free populations of the states and worked out the equation to find the proportion of slave ‘representation’ necessary to precisely balance North and South. As I recall, the figure was, almost exactly, three-fifths.

I’d never heard of the three-fifths tax policy before. Is it explicitly referred to in the documents surrounding the Three-Fifths Compromise, and if so, do we have evidence suggesting it was more than a fig leaf for decorum’s sake? It seems like quite a fortunate coincidence. (As one of my teachers said, ‘They had algebra in the 18th century too.’)

Are the “state” characters (the outlines that speak, as opposed to humans) meant to represent the arguments of actual representatives from those particular states? Or are they just outlines of recognizably southern states chosen at random to represent general arguments?

(And why are you suppressing the voices of the northern states and not letting them speak for themselves, except for that one panel? :))

I’ve been wondering something.
How would the House of Representatives and Electoral Congress look, if all incarcerated convicts were counted as 3/5ths?
How would that effect the rate of incarceration?
It’s not like they’re allowed to vote.

Post navigation

This is a purely educational website. Nothing here is legal advice or creates or implies an attorney-client relationship.

By using this site, you agree that you are awesome. Use of this site also constitutes acceptance of its Terms of Service and Privacy Policies, which are known to medical science as a cure for insomnia.

THE ILLUSTRATED GUIDE TO LAW and the PEEKING JUSTICE logo are pretty damn cool trademarks and should probably be registered one of these days.